论房地产中介服务合同的性质与法律适用

司法实践及房地产交易实践中普遍存在的视房地产中介服务合同为居间合同的看法并不妥当。房地产中介服务合同并非合同法规定的有名契约,也非契约联立,而应为居间合同、委托代理合同、委托合同构成的混合契约。房地产中介服务合同在法律适用上应采取类推适用主义,分别类推适用居间合同、委托代理合同及委托合同的相关规则,但类推时应把握当事人缔约目的在于委托房地产中介完成房地产交易活动的意图,以寻求类推适用的和谐,避免类推结果的冲突。

It is not proper that the real estate intermediary services contract is taken for an intermediate one which widely exists in the judiciary practice and deal in the real estate.The real estate intermediary services contract is not even one type of named contracts stipulated in the Contract Law,also not the multiple contract,but the mixed contract including the intermediate contract,agency contract and commission contract.As to the legal application,it should adopt the method of analogy,to reason the relevant rules of the intermediate contract,agency contract and commission contract by analogy separately.And when reasoning by analogy,it is vital to grasp the purpose of the contracting parties when they come into a contract like that,to pursue the harmony of the method of analogy in order to avoid the conflict of the reasoning outcome.